Family Law Rules (Amendment) 1995 No. 146
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 146
Issued by the authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law Act 1975 provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.
Section 123(2) of the Family Law Act provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections to regulations were references to Rules of Court.
The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.
DETAILS OF THE PROVISIONS OF THE AMENDMENTS
Rule 1 - provides the commencement date.
Rule 2 - is a machinery provision.
Rule 3 - amends Order 26 Rule 3 to accord with Section 67 of the Act. Section 67 provides for the registration of custody or access orders in other courts which exercise jurisdiction under Part VII of the Act.
The present Rule 3 refers to "a custody order to which order 67 of the Act applies". Section 67 defines "custody order" as including an order for access to a child. However, this is not obvious to a reader of the present Rule 3 and the redraft makes this plain.
The present heading of Rule 3 ("Registration of Interstate Custody Orders") is inappropriate. It is intended that the Rule will also apply to registration of Orders in another court with jurisdiction under Part VII of the Act located in the same State as the court in which the order was made.
Rule 4 - is designed particularly to encourage uniformity in the order of evidence and addresses with various courts exercising jurisdiction under the Family Low Act. The present situation is that the order of addresses varies to some extent between different States and there is some variation between courts and between States in relation to the order of evidence. particularly as to evidence called by the child's representative. The proposed Rules 1B and 1C of Order 30 are intended to set out the order for adducing evidence and the order of addresses. These are subject to the general power of the Court to direct otherwise (contained in the draft Rule 1A).
Rule 5 amends Order 31B paragraph 16(c) to overcome an error. The present paragraph requires a person who lodges an Appeal under Section 88 of the Child Support (Registration and Collection) Act to file with the Appeal two copies of "any Notice in opposition to or in support of the objection, as the case may be, lodged under Subsection 86(3) of that Act". However, the appellant may not have seen a "Notice in opposition to or in support of the object" which was lodged by the respondent. The amendment is to restrict the requirement of paragraph (c) to Notices lodged by the appellant.
Rule 6 - this replaces the existing Rule 8 with a new Rule 8 which is expressed in simpler language (particularly Subrule 8(1)). This new Rule introduces in paragraph 8(3)(c) the option of a Court varying the agreement (rather than limiting the options to enforcement or setting aside).
Subrule 5 introduces a new requirement that a costs agreement must be fair and reasonable.
Rule 7
In 7.1 the amendments to Subrule 8AM involve the Subrule being expressed in simpler language.
The effect of the amendments in 7.2 and 7.3 give Judicial Registrars the power to make orders under Rule 8A as to the validity and enforcement of the costs agreement. Under the present Rule only Judges have that power.
In 7.4 Rule 8A is amended by inserting specific provisions (Subrule (2M to enable a costs agreement to be set aside if it is not in writing, is not signed by each party to the agreement or the requirements of Subrule 4 are not complied with.
Subrule (2B) is a new provision which provides that where an application is made for an order as to validity or enforcement of a costs agreement, the onus is on the solicitor to prove on the balance of probabilities the facts on which the solicitor relies.
7.5 and 7.6 are consequential amendments following from 7.2 and 7.3.
Rule 8 - this item effects an amendment to the current notes on Form 58 (Certificate of Taxation of Costs). The current notice suggests that the procedure under Order 30A Rule 4 for reconsideration of the decision of the Taxing Officer is available when the Form 58 has issued. This is incorrect as the reconsideration procedure occurs before the issue of the Form 58 and the only remedy available once the Form 58 issues is an application under Order 30A Subrule 43 for a Review of the Decision of the Taxing Officer on any matter that was reconsidered under Order 30A Rule 40.